Tag Archives: GAO

Retaliation against whistleblowers remains problem in FBI

WASHINGTON—Former and current FBI agents Wednesday said the agency needs a “culture shift” to stop retaliation against whistleblowers, especially an improved reporting process to better protect those reporting alleged abuses.

Their recommendations came on the heels of a Washington Times report that an agent received an email last August explaining he or she could face retaliation for revealing a potential abuse, or blowing the whistle, to a supervisor.

Whistleblowers reveal corrupt practices, such as waste or abuse of authority, typically to a superior within their government agencies or organizations.

Whistleblower protection laws, which were most recently updated in 2012, shield government employees from retaliation if they report corruption to a superior. The 35,000 people the FBI employs do not receive those same protections, however, according to critics (They are protected under the law, right, just not in practice?).

“This ought to be cause for anybody to scratch their head,” Sen. Chuck Grassley, R-Iowa, said during a Senate Judiciary Committee hearing on Wednesday. During the hearing, professionals familiar with the FBI’s reporting system provided testimony about its flaws.

Stephen Kohn of the National Whistleblowers Center outlined numerous cases in which whistleblowers had to leave their positions at the FBI after making whistleblower retaliation complaints. Their cases took too long to resolve within the Department of Justice or their work environment became too hostile, Kohn said.

“The Department of Justice’s program for protecting FBI whistleblowers is broken,” said Kohn, a lawyer who represents agents in these cases.

Former FBI special agent Michael German, who was a whistleblower, said the FBI’s policy is not conducive to whistleblowing. Currently, all employees are expected to report corruption to a Special Agent In Charge.

“I can’t overstate how difficult it would be for an agent to break protocol and report directly to an SAC,” German said, adding that it would be uncommon for an agent to approach such a high-ranking official. Reporting to a more direct supervisor would be more logical, he said.

The FBI does not protect reports made to direct supervisors against retaliation, Kohn said.

The Department of Justice has thrown out many FBI retaliation investigation cases on the basis that the agent did not report to the designated superior.

The Government Accountability Office’s David Mauer said its January report on FBI retaliation complaints found that in one year, the DOJ threw out a majority of retaliation cases for this reason.

All FBI employees are expected to report to one of nine agency officials, including the director of the FBI and the attorney general, Mauer said.

Another concern with FBI retaliation cases is the length of time the Department of Justice spends resolving them. Some of these cases last eight to 12 years, effectively ruining promising agents’ careers, Kohn said.

Mauer, the GAO’s director of homeland security and justice, said the agency made similar findings. Timelines for these cases were very inconsistent, he said.

“DOJ took the longest for those cases where it found the FBI had retaliated against the whistleblower,” said Mauer.

The GAO report recommended a policy change that would ensure retaliation complaints were resolved within a specific, consistent timeframe.

Kohn, German and several lawmakers at the hearing agreed that the agency’s work does not automatically necessitate its own class of whistleblower protection policies.

“The details of the national security issues almost never have to go in front of a court,” Kohn said. “If they did, the federal courts have very good procedures for guarding secrets.”

Grassley, the Senate Judiciary Committee chairman, described the need for a “culture shift” within the FBI. The agency’s associate deputy director, Kevin Perkins, said he shares this vision.

“Whistleblowers are a critical element of a functional democracy,” Perkins said. “We share the desire for the process to be improved and expedited.”

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Senate Homeland Security Committee hearing on terrorist threats and guns

A bill to prevent the sale of firearms to people on the terrorist watch list would “close a dangerous loophole,” according to the chairman of the Senate homeland security. But the top Republican on the committee has questions about its constitutionality.

The Senate Committee on Homeland Security and Governmental Affairs recently held a hearing on the legislation, first proposed by the Bush administration in 2007 and now sponsored by Sen. Frank Lautenberg, D-N.J., that would give the attorney general the discretion to prevent the sale of firearms to individuals on the terror watch list.

A recent Government Accountability Office report stated that, between 2004 and 2010, people on the terrorist watch list tried to purchase guns and explosives 1,228 times and succeeded 1,119 times because “no prohibiting information was found — such as felony convictions, illegal immigrant status, or other disqualifying factors,” Eileen R. Larence, director of the GAO’s homeland security and justice section, said in prepared testimony.

“This hearing on what Congress and the federal government can do to keep firearms out of the hands of terrorists was scheduled long ago but its urgency has certainly been made clear by the events of the past four days,” Sen. Joseph Lieberman, I-Conn.,  said at the May 5 hearing, referring to the attempted Time Square bombing. Lieberman also pointed to the shootings at Fort Hood, Texas, last November, and a shooting incident in Little Rock, Ark., last June, as “terrorist attacks on America since 9/11 that have been carried out and taken American lives” by using firearms.

“It is true that homegrown terrorists are generally less sophisticated than those sponsored and trained overseas by Al Qaeda, they may also – particularly if acting alone – be harder to detect and stop,” Liberman said. “And the easy availability of lethal weapons ensures that these homegrown terrorists can legally obtain sufficient firepower to cause terrible damage.”

He called for the bill to be enacted “as quickly as possible to close this dangerous loophole before another suspected terrorist is able to buy firearms legally and use them to kill Americans.”

But  Sen. Susan Collins, R-Maine,  raised constitutional questions about using the terror watch list to restrict the right to purchase a firearm. She posed three questions for consideration:

  • Are appropriate protections included within the watchlist process to justify the denial of a constitutional right?
  • If not, what procedural protections should be afforded those who are erroneously denied the ability to purchase a firearm?
  • What guidelines are necessary to constrain the Attorney General’s discretion to prevent law-abiding Americans from purchasing a firearm?

New York City Mayor Michael Bloomberg testified that FBI agents should have the authority to block sales of guns and explosives to those on the terror watch lists, citing two examples of thwarted attacks against New York City in the past year in which terrorists had purchased guns and explosives. He testified that a bipartisan coalition of 500 mayors supports such legislation and urged Congress to also make background checks necessary before guns can be purchased at a gun show.

Aaron Titus, privacy director of the Liberty Coalition, testified against proposed legislation, saying it would  “strip citizens of their enumerated constitutional right to bear arms without any meaningful due process and create a national firearms registry.”

He noted that those convicted of terrorism, as felons, would not be allowed to own guns under current law.

New York Police Commissioner Raymond W. Kelly, Sen. Frank R. Lautenberg, D-N.J., Rep. Peter T. King, R-N.Y.,  and senior officials from the FBI, GAO and the Los Angeles Police Department also testified before the committee.

Further reading: Written testimony and webcast (also available on C-SPAN), GAO report (PDF),  S.1317 “Denying Firearms and Explosives to Dangerous Terrorists Act of 2009”, S.2820 “Preserving Records of Terrorists & Criminal Transactions Act of 2009”

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